State v Aupe [2001] PGNC 119; N2072 (16 March 2001)

N2072

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1163 of 2000

Between:

THE STATE

And:

SOGAVO MOMOTO AUPE

GOROKA: KANDAKASI, J
2001: 14th & 16th March

CRIMINAL LAW - Bail - Revocation of - Evidence of possible interference of State witness by the defendant - Not to interfere with State witnesses part of bail condition whether or not specified in bail certificate - Bail revoked - Constitution s. 42(6) - Bail Act (chp.340) s. 9(1)(f).

Cases cited:
Re Fred Keating [1983] PNGLR 133
Steve Lester v The State (January 2001) N2044
Philip Maru & Arua Oa v The State (26th January 2001) N2045
Jeffrey Osara v The State (26th January 2001) N2046
Paul Louis Kysely v The State [1980] PNGLR 36
Livingston-Thomas v Associated Newspapers Ltd [1960] 90 W. N. (Pt. 1) (N. S. W.) 223

Counsel:
Mr K. Umpake for the State
Mr M. Apie’e for the Defendant

16th March 2001

INTERLOCUTORY RULING

KANDAKASI, J.: The Defendant has been charged with one count of murder of his wife, Freda Ututu Suwari Sogavo ("the deceased"). The matter was listed for trial for three (3) days commencing the 14th and ending on the 16th March 2001. The defendant was appearing from bail. Neither a copy of the bail certificate nor is there an endorsement on the Court file and I am not able work out who granted bail to the defendant and on what terms.

When the matter was called for hearing on the 14th March 2001, Mr. Umpake of counsel for the State informed the Court that the State was having some difficulty locating two of its key witnesses. These witnesses are the blood sisters of the deceased. Mr. Umpake stated that, there was a possibility of interference of the State's witnesses by the defendant and the police were looking into that matter. They require some time before a final position could be ascertained. He therefore, asked for a vacation of the trial to the next call-over list for the allocation of a new date when the State would be ready with its witnesses. Prior to that, Mr. Umpake also informed the Court that, this case received some publicity in the township of Goroka and the public was following it and wants to see justice being done.

Having regard to the history of the matter and the matter being specifically listed for trial for three days with counsel and myself travelling from Port Moresby to conduct the trial on the dates set, I refused to vacate the trial dates and decided to stand the matter down to 1:30 pm. I then asked both counsels to meet me in Chambers. I also directed the police investigating officer (s) to come and report to me on the investigations and the progress they were making.

At 1:30 pm on the 14th March 2001, both counsels together with the police-investigating officer attended in Chambers. The police investigating officer, Constable Alex Sigimai, informed that, police has reason to believe that the defendant had interfered with the State witnesses. Counsel for the defendant denied that on behalf of his client. In the light of that, I directed both the State and the defendant to file affidavits setting out their respective positions in relation to the non-appearance of the two key witnesses. I also indicated that, I would review bail on the basis of whatever material or evidence is put before me in the form of affidavits and adjourned the matter to 1:30 pm on the 16th March 2001.

On the 16th March 2001, the State filed two affidavits one by a Constable Joe Mangre and another by Constable Alex Sigimai respectively sworn on the 14th and 13th March 2001. No affidavits were filed for the defendant. Counsel for the defendant said he had problems with secretarial services including photocopying. There was a statement by the defendant, which he had arranged to be photocopied by a relative of the accused. However, the photocopied material was not with him as they were not returned and he asked if I could conduct a hearing and receive oral evidence from his client. I refused to do that on the basis that, ample opportunity was given to him and his client to bring into Court whatever material they relied upon, noting well, the provisions of s. 9 (2) of the Bail Act (Chp.340), but they failed. The State was given a similar time period and it brought its evidence in. It was therefore, going to be unfair to bend backwards for the defendant and take up more time to hear and receive oral evidence from him. It was also because there was not much time to allow for a presentation of oral evidence by the defendant.

According to Constable Sigimai, the police investigating and arresting officer in this case, the two key witnesses namely, Saina Suwari and Janet Saneth Segya were picked up by police on the 8th March 2000 in preparation for the trial. The witnesses confirmed their availability and readiness to come to court and given evidence against the defendant. They were then ask to come back for a conference on the 9th of March 2001, with a senior State lawyer who was going to prosecute the matter in preparation for the trial. On the 9th however, the two key witnesses did not turned up. Police therefore, went searching and looking for them at their usual place of abode and their village and did not find them. In the process of their investigations, late on Sunday afternoon at about 5:30 pm, some villagers informed the police investigators that the witnesses went to Madang. They were also informed that the defendant may have taken them and send them to Madang to prevent them from presenting themselves in court to give evidence against the defendant.

On the morning of Monday, the 12th March 2001, Constable Sigimai says he went down to the defendant’s place at the New Tribes Mission and at the front of his service station he met the defendant. He then asked the defendant as to the whereabouts of the two female witnesses and the defendant told him that they had gone to Madang with some of their relatives. Constable Sigimai then asked who took them to Madang and the defendant said a Michael Heni and Tony Fova. He then asked for their address or location and the defendant said he did not know. At that stage, Constable Sigimai informed the defendant that he was interfering with National Court witnesses and that he was in breach of his bail conditions. He then told him to find the witnesses quickly before 5 pm on Monday afternoon and 8 am on Tuesday morning being the 13th March 2001. However, the defendant did not do that.

Constable Joe Mangre accompanied Constable Sigimai when he went to the Defendant and enquired about the two key witnesses. He corroborates what Constable Sigimai said in relation to the two key police witnesses and the conversation with the defendant.

The defendant denied the evidence presented by the Stated. He did not present any evidence rebutting the State’s evidence.

Given the above evidence, I asked counsel to make submissions on the question of whether or not the defendant’s bail should be revoked.

Mr Apie’e of counsel for the defendant argued that, his client’s bail should not be revoked. Instead, the terms or conditions of his bail should be tightened with a view to making them more stringent. He suggested amongst others that, the amount of cash bail his client has paid be substantially increased and his client be asked to assist in the location of the two key witnesses. In so arguing, he submitted that, the fact that his client was a businessman should not be held against him. In other words, he argued that, there should be no conclusion drawn in terms of, because his client is a businessman, he is in a position to see to the witnesses failing to turn up in court and give evidence against him. At the same time, counsel for the defendant conceded that, the other side of the argument cannot be discounted, that is to say, because of the means the defendant has, he could easily see to the witnesses being prevented from turning up in court and giving evidence against him.

Mr Umpake of counsel for the State argued for a revocation of the defendant’s bail in the light of the evidence presented by the State, which shows that there has been an interference with vital or key State witnesses. He argued that, the witnesses were ready and willing to testify against the defendant. They were the blood sisters of the deceased and had every reason to come forward and testify against the defendant and see justice being done, unless the defendant or his agent was preventing them from coming forward. They were the State’s key witnesses and the defendant knew about that. The defendant also knew that, if those two witnesses come into court and testify against him, he will be convicted. It was therefore, in his interest to see that those two witnesses did not turn up. Accordingly, he has arranged for the witnesses non-appearance. Hence, he argued that, if the defendant is continued to be allowed out on bail, there was nothing to indicate that he would cease from interfering with the witnesses. He also argued that, the case received some publicity in the Goroka township and the public had an interest in seeing justice being done with a satisfactory explanation for the recent unexplained disappearance of the key State witnesses. The cause of justice, he argued further, will not be served if the defendant is allowed to remain out on bail.

Section 42 (6) of the Constitution entitles "a person arrested or detained for an offence (other than treason or wilful murder has defined by an act of Parliament) . . . to bail at all times from arrest or detention to acquittal or conviction unless the interest of justice otherwise requires" (emphasis mine). Section 9 of the Bail Act (Chp. 340) sets out the circumstances in which bail may be refused. The existence of one or more of the circumstances specified under that section could form the basis to refuse bail. That is however, not automatic. The court or the bail authority still has a discretion to grant bail if the applicant for bail is able to show by appropriate evidence that his "continued detention in custody is not justified". This has been made clear by a large number of cases starting with the Supreme Court decision in Re Fred Keating [1983] PNGLR 133 and a number of other judgments including my own in Steve Lester v The State (26th January 2001) N2044; Philip Maru and Arua Oa v The State (26th January 2001) N2045; and Jeffry Osara v The State (26th January 2001) N2045 and others.

One of the factors that always becomes an important part of a bail authority's consideration in determining whether or not to grant bail is the question of, whether the person asking for bail is "likely to interfere with State witnesses". Indeed s. 9 (1)(f) of the Bail Act provides that bail may be refused if the person is "likely to interfere with witnesses or the person who instituted the proceedings."

Wilson J., considered the definition of the term "likely" as used in s. 9(1)(f) of the Bail Act in Paul Louis Kysely v The State [1980] PNGLR 36 at page 39 and held that the word "likely" in the phrase "likely to interfere with witnesses" in s. (9) (1) (f) means likely in the sense of a tendency with real possibility. It does not mean "more likely than not", "probably", or "very likely". His Honour held in those terms after having regard to the case of Livingston – Thomas v Associated Newspapers Ltd [1969] 90 W. N. (Pt. 1) (N.S.W.) 223 at p. 229 where Wallace P said:

The word 'likely' can scarcely mean 'more likely than not' in s. 5, if only for the reason that the section does not say so. Similarly such suggestions as 'probability' and 'very likely' are to be rejected. I think the legislature has meant 'likely' in the sense of a tendency or real possibility.

For the case before him, his honour said also at page 39:

Having regarding to all the evidence placed before me, in particular, the evidence that interference has already occurred, there is a real possibility in the instant case that witnesses will be interfered with if the applicant is released on bail. For these reasons, I am satisfied the requested extend as envisaged in s. 9 that the applicant is likely to interfere with witnesses.

Accordingly, the court in that case, refused an application for bail.

The case before me now is not an application for bail. Instead, the defendant has already been granted bail and there is evidence of him interfering with key State witnesses. This is therefore, a review of his bail to determine whether or not it is appropriate to revoke his bail in the light of that evidence.

When a person is granted bail, he is required to meet all the conditions set forth in the bail certificate and to avoid interfering with State witnesses. Some bail certificates specify that condition. Others do not. Simply because it is not stated in the bail certificate does not mean that, a person granted bail is at liberty to either directly or indirectly interfere with State witnesses. If he interferes with State witnesses he forfeits the right to be continued to be allowed out on bail. Unless a satisfactory explanation is given as to why his bail should not be revoked, his bail should be revoked.

The defendant in the present, is a well-known businessman in the Goroka area. The offence he is alleged to have committed received much publicity in the township. The community therefore, has an interest in seeing justice being done according to law. The matter was listed for trial for three days commencing the 14th March 2001. A week before that, the State's key witnesses were available and ready and willing to come forward and testify against the defendant. The Police investigating officers spoke to them and the witnesses assured the police officers that they would turn up in court and give evidence against the defendant. Prior to that, they also promise to come and see the State lawyer on the 9th of March 2001, for an interview in preparation for the trial. Then all of a sudden however, without any explanation whatsoever, the two key State witnesses disappear. They could not be located at their usual and known place of abode. They could not also, be located at their village. Their relatives and the police are looking for them. According to police inquires and a conversation with the defendant, the defendant suggested that the witnesses had gone to Madang in his vehicle. The defendant was asked to ensure that the witnesses appear before the court on the date set for trial for the case against him. He failed to see to that happening. In all of these circumstances, and in the absence of any evidence to the contrary, I find that the defendant has interfered with key State witnesses.

Police are continuing their investigations into the whereabouts of the witnesses. I find there is a likelihood of the defendant interfering with that process and the locating of the witnesses and ultimately their appearance in court to testify against him. The witnesses are related to the deceased. There was therefore, no reason why they could not turn up unless the defendant or his agent or a person with or without his authority not willing to see those witnesses testify against the defendant has prevented them from turning up in court and giving evidence. As stated by Wilson J., in the Paul Louis Kysely case, I find that there is likelihood of further interference of state witnesses, including the police endeavours to locate the missing witnesses. In the circumstances, I consider that in the interest of justice, the defendant’s bail should be revoked and he should be remanded in custody awaiting his trial. His case should be listed for trial as soon as the State witnesses have been located and the State is ready to proceed with the case against the defendant.

Accordingly, the Court makes the follows:

1. The Defendant's bail is revoked forthwith.
2. The defendant shall be remanded in custody awaiting his trial.
3. The case will be listed for trial at a call-over when the State is ready for trail.
   

_____________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Defendant: Public Solicitor